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Michael McKinnon is a partner in the Corporate Practice Group in the firm's Orange County office and leader of the firm's Healthcare Private Equity Team.

On March 30, 2020, CMS through its blanket 1135 waiver authority[1] implemented a “Hospital without Walls” policy to allow hospitals to provide and bill for hospital services in other healthcare facilities and sites, such as ambulatory surgery centers (“ASCs”).  The waiver is intended to ensure that local hospitals and health systems have the capacity to handle the anticipated surge of COVID-19 patients through the duration of the public health emergency (“PHE”).  See, “CMS Issues Temporary Waivers in Broad Coronavirus Response,” as posted on April 2,2020 on this blog for general information regarding the March 30, 2020 1135 waiver.
Continue Reading CMS “Hospitals Without Walls” Waiver: Looking To ASCs to Provide Relief

On March 25, 2020, the Division of Corporate Finance of the Securities and Exchange Commission published guidance on disclosure obligations of companies with respect to COVID-19 and related disruptions. The SEC recognizes that the full impact of COVID-19 on any company or industry may be difficult to predict, but such effects may still be material to stockholders, and so it provided some detail on the obligations of companies to report such items.
Continue Reading SEC Guidance on COVID-19 Disclosures for Healthcare Providers

Attendees of the annual Moss Adams Health Care Conference held in Las Vegas on November 7th and 8th, were treated to a heated exchange between political all-stars Karl Rove and James Carville over a variety of topics including the likely impeachment proceedings against President Trump, US policy in Syria and the upcoming elections (and the recently announced entry of yet another Democratic presidential candidate—Michael Bloomberg).  But at the top of everyone’s minds in the audience were questions over healthcare policy and specifically Elizabeth Warren’s Medicare-for-All plan, with an estimated price tag of $34 trillion.  It turned out that Karl and James were in lockstep agreement on the issue— “It makes no sense.  She is just completely insane!” Carville screamed.  The audience laughed.  But earlier, several conference speakers opined that some form of government mandated universal healthcare program could very well happen. 
Continue Reading 2019 Moss Adams Health Care Conference – Vision 2020: The Future of Health Care

In 2010, the Affordable Care Act (“ACA”) enacted new rules governing overpayments made by the Medicare and Medicaid programs. Under these rules, providers have 60 days from the date that the overpayment has been identified to return the overpayment or face penalties and treble damages under the False Claims Act (“FCA”).  As described below, recent regulations have clarified some of the issues surrounding the ACA obligation to refund overpayments, at least for overpayments under Medicare Parts A and B.  But, determining whether a provider has “identified” an overpayment – and thus started the 60 day countdown – can still be nuanced and complex.  Diligent providers that have proactive and robust compliance and audit functions in place may find some comfort, since such providers are presumably able to respond quickly to credible information that there has been a potential overpayment, as required by the new regulations, and thereby have a reasonable period of time to conduct an investigation and quantify the amount of any overpayment before the 60 day clock begins to run.
Continue Reading The Overpayment Rule and the Implied False Claims Theory: “What You Don’t Know Can Still Hurt You”